ex10_3.htm



    
      

    

    Exhibit
10.3

    


    Execution
Copy

    


    FIFTH
AMENDMENT TO NOTE PURCHASE AGREEMENT


    (2005)

    


    This
Fifth Amendment dated as of December 21, 2009 (this “Fifth Amendment”) to the Note
Purchase Agreement dated as of September 29, 2005 as amended by the First
Amendment thereto dated February 1, 2008 and the Second Amendment thereto dated
as of February 17, 2009 and the Third Amendment thereto dated as of September
15, 2009 and the Fourth Amendment thereto dated as of September 18, 2009 (the
“Note Purchase
Agreement”) is between Modine Manufacturing Company, a Wisconsin
corporation (the “Company”), and each of the
institutions which is a signatory to this Fifth Amendment (collectively, the
“Noteholders”).

    


    RECITALS:

    


    A.      
     The Company and the Noteholders are parties to the
Note Purchase Agreement pursuant to which the Notes (as defined therein) are
outstanding.

    


    B.        
    The Company has requested that the Noteholders agree to
certain amendments to the Note Purchase Agreement as set forth
below.

    


    C.        
    Subject to the terms and conditions set forth herein,
the Noteholders are willing to amend the Note Purchase Agreement in the
respects, but only in the respects, set forth in this Fifth
Amendment.

    


    D.       
     Capitalized terms used herein shall have the
respective meanings ascribed thereto in the Note Purchase Agreement, as amended
hereby, unless herein defined or the context shall otherwise
require.

    


    E.       
     All requirements of law have been fully complied
with and all other acts and things necessary to make this Fifth Amendment a
valid, legal and binding instrument according to its terms for the purposes
herein expressed have been done or performed.

    


    NOW, THEREFORE, in
consideration of good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and the Noteholders do hereby agree
as follows:

    


    SECTION
1.        AMENDMENTS.

    


    Effective
as of the Effective Date (as defined in Section 3 hereof), the Company and the
Noteholders agree that the Note Purchase Agreement is amended as
follows:

    


    1.1           Schedule
B to the Note Purchase Agreement is amended deleting the definition of “Dutch
Holdco” therefrom and by adding, or amending and restating, as applicable, the
following definitions:


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    “MCS” means Modine Climate
Systems GmbH, a company organized under the laws of Germany.

    


    “Modine Holding Consolidated
Group” means Modine Holding GmbH and its Subsidiaries existing as of the
Second Amendment Effective Date, and any other Foreign Subsidiary permitted
under this Agreement to be a Subsidiary of Modine Holding GmbH.

    


    1.2           The
last sentence of Section 10.2 of the Note Purchase Agreement is
deleted.

    


    1.3           Section
10.5 of the Note Purchase Agreement are amended and restated as
follows:

    


    “Section 10.5   Sale of
Assets.  The Company will not, and will not permit any
Subsidiary to, sell, lease, transfer, abandon or otherwise dispose of assets
including, without limitation, pursuant to any Sale and Leaseback Transaction;
provided that the
foregoing restrictions do not apply to:

    


    (a)           the
sale, lease, transfer or other disposition of assets of a Subsidiary to the
Company or a Wholly-owned Subsidiary; or

    


    (b)           the following sale, lease or other
dispositions of assets:

    


    (i)       
    sales of inventory in the ordinary course of
business;

    


    (ii)           sale
or other disposition of Modine Korea, whether by sale of Equity Interests or
assets, and other assets owned by Foreign Subsidiaries related to the
Korean-based vehicular HVAC business;

    


    (iii)           if
no Default or Event of Default shall have occurred and be continuing or would be
caused thereby, the sale of the Equity Interests of MCS owned by the Company to
Modine Holding GmbH in exchange for a promissory note issued by Modine Holding
GmbH to the Company (and pledged to Collateral Agent under the Collateral
Documents) in the approximate amount of the book value of the receivable owed to
MCS by Modine Holding GmbH, determined as of the date of the sale, provided that
such promissory note shall have a face amount of not less than €20,000,000 and
shall otherwise be reasonably acceptable to the Required Holders;

    


    (iv)           if
no Default or Event of Default shall have occurred and be continuing or would be
caused thereby, the sale of Modine Austria to Modine Holding GmbH, provided that
Modine Holding GmbH is a Wholly-Owned Subsidiary at the time of such sale, for a
purchase price based on the fair value of Modine Austria to be determined based
on a valuation by Ernst & Young or otherwise determined in a manner
acceptable to the Required Holders, provided that such price shall not be less
than €11,000,000 (as adjusted based on any changes to the balance sheet of
Modine Austria between March 31, 2009 and closing of the sale), and such
purchase price is payable as follows: (x) at least €1,500,000 payable in cash at
the closing of the sale, (y) the assignment to the Company by Modine Holding
GmbH of an existing loan in the amount of €3,500,000 owing by UK Dollar to
Modine Holding GmbH, which assignment shall be on terms and conditions
satisfactory to the Required Holders, and (z) the balance of the purchase price
will be paid with a promissory note with a maturity of not more than three
years, interest payable at the rate of one year EURIBOR + 300 bps, payable
quarterly and reset annually on each December 1 and otherwise on terms and
conditions satisfactory to the Required Holders and without any restrictions on
the payment or prepayment thereof (whether in connection with any agreement
governing any Debt of Modine Holding GmbH or any of its Subsidiaries or
otherwise);


    
      
         


      

      
        - 2
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    (v)           leases,
sales or other dispositions of property that, together with all other property
of the Company and its Subsidiaries previously leased, sold or disposed of as
permitted by this clause (v) during the twelve-month period ending with the
month in which any such lease, sale or other disposition occurs, do not
constitute a Substantial Portion of the property of the Company and its
Subsidiaries, provided that, after giving effect to any such lease, sale or
other disposition, no Default or Event of Default shall have occurred and be
continuing;

    


    (vi)           any
transfer of an interest in accounts or notes receivable and related assets
permitted under Section 10.23;

    


    (vii)           any
transfer of assets pursuant to an Investment permitted under Section
10.15;

    


    (viii)           the
dissolution or liquidation of any Subsidiary if its assets are transferred to
the Company or to a Guarantor that is a Domestic Subsidiary, and any other
transfer of assets from any Subsidiary to the Company or to a Guarantor that is
a Domestic Subsidiary; or

    


    (ix)            the
dissolution or liquidation of any Subsidiary of Modine Holding GmbH if its
assets are transferred to any other Subsidiary of the Company, and any other
transfer of assets from any Subsidiary of Modine Holding GmbH to the Company or
any Subsidiary.

    


    provided
that, in the case of any lease, sale or other disposition under clauses (ii),
(v), (vi) or (vii) of this Section 10.5(b), the proceeds of such any such lease, sale or other
disposition are applied in accordance with Section 9.12.”

    


    1.4           Section
10.7 of the Note Purchase Agreement are amended and restated as
follows:

    


    “Section 10.7  Transactions with
Affiliates.  The Company will not and will not permit any
Subsidiary to enter into directly or indirectly any transaction or group of
related transactions (including without limitation the purchase, lease, sale or
exchange of properties of any kind or the rendering of any service) with any
Affiliate, except (a) pursuant to the reasonable requirements of the Company’s
or such Subsidiary’s business and upon fair and reasonable terms no less
favorable to the Company or such Subsidiary than would be obtainable in a
comparable arm’s-length transaction with a Person not an Affiliate, and, in the
case of any such transaction involving an Affiliate that is not the Company or a
Subsidiary, in the ordinary course; (b) transactions between the Company or any
Subsidiary, on the one hand, and any Subsidiary or other special purpose entity
created to engage solely in a Qualified Receivables Transaction; (c)
transactions among the Company and Guarantors that are Domestic Subsidiaries;
(d) transactions among members of the Modine Holding Consolidated Group and (e)
transactions specifically permitted to be entered into expressly with Affiliates
under this Agreement.


    
      
         


      

      
        - 3
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    1.5           Section
10.14 to the Note Purchase Agreement is amended by restating clauses (g) and (h)
therein as follows:

    


    “(g)  [intentionally
omitted];

    


    (h)  a
loan evidenced by a promissory note accepted by the Company, payable to the
Company by Modine Holding GmbH, which evidences solely the deferred payment for
the sale of MCS by the Company to Modine Holding GmbH permitted under Section
10.5(b)(iii) and a loan evidenced by a promissory note accepted by the Company,
payable to the Company by Modine Holding GmbH, which evidences solely the
deferred payment portion of the sale of Modine Austria GmbH to Modine Holding
GmbH permitted under Section 10.5(b)(iv), provided neither promissory note may
be amended without the consent of the Required Holders and that the Company will
take or cause its Subsidiaries to take all action to ensure that all obligations
under such notes do and will rank at least pari passu in right of payment with
all of the present and future unsubordinated Debt of Modine Holding GmbH, except
to the extent: (i) otherwise required under German law, or (ii) such Debt
is secured by Permitted Encumbrances or other Liens permitted under Section
10.4; and”

    


    1.6           Section
10.15 to the Note Purchase Agreement is restated as follows:

    


    “Section
10.15  Investments and Acquisitions.

    


    (a)  The
Company will not, nor will it permit any Subsidiary to, make or suffer to exist
any Investments (including without limitation, loans and advances to, and other
Investments in, Subsidiaries), or commitments therefor, or to create any
Subsidiary or to become or remain a partner in any partnership or joint venture,
or to make any Acquisition of any Person, except:

    


    (i)     
      Cash Equivalent Investments.

    


    (ii)           (x)
Existing Investments in Subsidiaries as of the Second Amendment Effective Date,
but no increase in the amount thereof other than an increase in the registered
capital of Modine Thermal Systems (Changzhou) Co. Ld. in the amount of
$1,500,000, and (y) other Investments described in Schedule 10.15, but no
increase in the amount thereof, as reduced from time to time.


    
      
         


      

      
        - 4
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    (iii)           Investments
comprised of capital contributions (whether in the form of cash, a note, or
other assets) to a Subsidiary or other special-purpose entity created solely to
engage in a Qualified Receivables Transaction.

    


    (iv)           Swap
Contracts; provided,
that any transaction under any Swap Contract shall be entered into to hedge a
risk exposure in the ordinary course of business of the Company or a Subsidiary
and not for speculative purposes.

    


    (v)           Loans
and advances permitted by Section 10.14.

    


    (vi)    
     The Acquisition by Modine Holding GmbH of Modine
Austria and of MCS in compliance with the terms of this Agreement.

    


    (vii)         The
creation of any new Domestic Subsidiaries that become Guarantors and any
Investments therein or in any other Domestic Subsidiary that is a
Guarantor.

    


    (viii)        The
creation of any new Subsidiaries of Modine Holding GmbH and any Investments
therein or in any other member of the Modine Holding Consolidated Group,
provided that all such Investments are made solely by another member of the
Modine Holding Consolidated Group.

    


    (ix)           if
no Default or Event of Default shall have occurred and be continuing or would be
caused thereby, the creation of Subsidiaries in Korea and Investments in
Subsidiaries in Korea (other than Modine Korea), provided that the aggregate
amount (based on the amount thereof at the time invested, and without regard to
any subsequent write down or other decrease in the value thereof) of Investments
in such Korean Subsidiaries on or after the Second Amendment Effective Date
shall not exceed $2,500,000.

    


    (x)           The
creation or acquisition of any other new Foreign Subsidiaries not permitted
above and that are not Subsidiaries of Modine Holding GmbH and any Investments
therein, provided that all such Investments are permitted under Section
10.15(b).

    


    (b)  The Company and its
Subsidiaries may make and have outstanding other Investments, provided that no
Default or Event of Default exists at the time such Investment is made or would
be caused thereby and at no time shall the aggregate outstanding amount of all
such other Investments existing and permitted under this Section 10.15(b) exceed
$1,000,000.

    


    Notwithstanding
anything herein to the contrary, the Company will not, nor will it permit any
Subsidiary to, make any Investments (including without limitation, loans and
advances to, and other Investments) to Modine Korea, any member of the Modine
Holding Consolidated Group (other than as permitted under  Sections
10.14(h) or 10.15(a)(viii)) or any Domestic Subsidiary that is not a Guarantor
at any time on or after the Second Amendment Effective Date.”


    
      
         


      

      
        - 5
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    1.7           Reference
in Section 10.19 of the Note Purchase Agreement to “$100,000” shall be replaced
with “$1,000,000”.

    


    SECTION
2.   REPRESENTATIONS AND WARRANTIES OF THE COMPANY.

    


    To induce
the Noteholders to execute and deliver this Fifth Amendment (which
representations shall survive the execution and delivery of this Fifth
Amendment), the Company and each Subsidiary Guarantor represents and warrants to
the Noteholders that:

    


    (a)           this
Fifth Amendment has been duly authorized, executed and delivered by it and this
Fifth Amendment constitutes the legal, valid and binding obligation, contract
and agreement of the Company enforceable against it in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws or equitable principles relating to
or limiting creditors’ rights generally;

    


    (b)           the
Note Purchase Agreement, as amended by this Fifth Amendment, constitutes the
legal, valid and binding obligations, contracts and agreements of the Company
enforceable against it in accordance with its terms, except as enforcement may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
or equitable principles relating to or limiting creditors’ rights
generally;

    


    (c)           the
execution, delivery and performance by the Company of this Fifth Amendment (i)
has been duly authorized by all requisite corporate action and, if required,
shareholder action, (ii) does not require the consent or approval of any
governmental or regulatory body or agency, and (iii) will not (A)(1) violate any
provision of law, statute, rule or regulation or its certificate of
incorporation or bylaws, (2) any order of any court or any rule, regulation or
order of any other agency or government binding upon it, or (3) any provision of
any indenture, agreement or other instrument to which it is a party or by which
its properties or assets are or may be bound, including without limitation the
Credit Agreement or 2006 Note Purchase Agreement, or (B) result in a breach or
constitute (alone or with due notice or lapse of time or both) a default under,
or require any consent or approval under, any indenture, agreement or other
instrument referred to in clause (iii)(A)(3) of this Section 2(c);

    


    (d)           after
giving effect to the amendments to the Note Purchase Agreement contained in this
Fifth Amendment,
all the representations and warranties contained in Section 5 of the Note
Purchase Agreement and in the other Transaction Documents are true and correct
in all material respects with the same force and effect as if made by the
Company and the Subsidiary Guarantors on and as of the date hereof;

    


    (e)           after
giving effect to the amendments to the Note Purchase Agreement contained in this
Fifth Amendment, no Default or Event of Default shall be in
existence;

    


    (f)           complete
and correct copies of the amendment to the 2006 Note Purchase Agreement and the
amendment to the Credit Agreement referred to in Section 3.1(b) below, and all
agreements and documents executed in connection therewith have been delivered to
the Noteholders and are attached hereto as Exhibit A, and such amendments and
other agreements and documents are being executed simultaneously herewith;
and


    
      
         


      

      
        - 6
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    (g)           neither
the Company nor any of its Subsidiaries has paid or agreed to pay, and neither
the Company nor any of its Subsidiaries will pay or agree to pay, any fees or
other consideration for the amendments described in Section 3.1(b) below, other
than the amendment fees set forth in such amendments and out-of-pocket costs and
expenses as set forth in or required pursuant to such amendments.

    


    SECTION
3.   CONDITIONS TO
EFFECTIVENESS.

    


    This
Fifth Amendment shall not become effective until, and shall become effective on
the date (the “Effective
Date”) when, each and every one of the following conditions shall have
been satisfied:

    


    (a)           Executed
counterparts of this Fifth Amendment, duly executed by the Company, the
Subsidiary Guarantors and the holders, shall have been delivered to the
Noteholders;

    


    (b)           the
Noteholders shall have received evidence satisfactory to them that an amendment
to the Credit Agreement and the 2006 Note Purchase Agreement, each in form and
substance satisfactory to the Noteholders, shall have been duly executed and
delivered by the Company and the required other parties and shall be in full
force and effect;

    


    (c)           The
representations and warranties of the Company set forth in Section 2 hereof
shall be true and correct on the date of the effectiveness of this Fifth
Amendment; and

    


    (d)           All
corporate and other proceedings taken or to be taken in connection with the
transactions contemplated hereby and all documents incident thereto shall be
satisfactory in substance and form to the Noteholders, and the Noteholders shall
have received all such counterpart originals or certified or other copies of
such documents as it may reasonably request.

    


    SECTION
4.   EXPENSES.

    


    The
Company hereby confirms its obligations under the Note Purchase Agreement,
whether or not the transactions hereby contemplated are consummated, to pay,
promptly after request by any Noteholder, all reasonable out-of-pocket costs and
expenses, including attorneys’ fees and expenses, incurred by any Noteholder in
connection with this Fifth Amendment or the transactions contemplated hereby, in
enforcing any rights under this Fifth Amendment, or in responding to any
subpoena or other legal process or informal investigative demand issued in
connection with this Fifth Amendment or the transactions contemplated
hereby.  The obligations of the Company under this Section 4 shall
survive transfer by any Noteholder of any Note and payment of any
Note.


    
      
         


      

      
        - 7
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    SECTION
5.   DIRECTION TO COLLATERAL AGENT.

    


    Effective
on the Effective Date concurrently with the effectiveness of a corresponding
direction by the Required 2006 Noteholders and the Required 2008 Lenders (each
as defined the Intercreditor Agreement), the Noteholders hereby direct the
Collateral Agent to execute and deliver on their behalf any agreements,
documents or instruments as shall be necessary or appropriate to effect any
releases of, any Lien on the Equity Interests of MCS in connection with the sale
thereof under Section 10.5(b)(iii) of the Note Purchase Agreement.

    


    SECTION
6.   REAFFIRMATION.

    


    Each
Subsidiary Guarantor hereby consents to the terms and conditions of this Fifth
Amendment, including without limitation all covenants, representations and
warranties, releases, indemnifications, and all other terms and provisions
hereof, and the consummation of the transactions contemplated hereby, and
acknowledges that its Guaranty under the Subsidiary Guaranty Agreement remains
in full force and effect and is hereby ratified and confirmed in all
respects.

    


    SECTION
7.   MISCELLANEOUS.

    


    7.1           This
Fifth Amendment shall be construed in connection with and as part of the Note
Purchase Agreement, and except as modified and expressly amended by this Fifth
Amendment, all terms, conditions and covenants contained in the Note Purchase
Agreement and the Notes are hereby ratified and shall be and remain in full
force and effect.  The Company and the Subsidiary Guarantors
acknowledge and agree that no holder is under any duty or obligation of any kind
or nature whatsoever to grant the Company any additional amendments or waivers
of any type, whether or not under similar circumstances, and no course of
dealing or course of performance shall be deemed to have occurred as a result of
the amendments herein.

    


    7.2           Any
and all notices, requests, certificates and other instruments executed and
delivered after the execution and delivery of this Fifth Amendment may refer to
the Note Purchase Agreement without making specific reference to this Fifth
Amendment but nevertheless all such references shall include this Fifth
Amendment unless the context otherwise requires.

    


    7.3           The
Company and each Subsidiary Guarantor represents and warrants that it is not
aware of any claims or causes of action against any Noteholder or any of their
respective affiliates, successors or assigns, and that it has no defenses,
offsets or counterclaims with respect to the Note Purchase Agreement, the Notes
or any of the other Transaction Documents.  Notwithstanding this
representation and as further consideration for the agreements and
understandings herein, the Company, on behalf of itself and its Subsidiaries,
employees, agents, executors, heirs, successors and assigns (the "Releasing
Parties"), hereby releases each Noteholder and their respective predecessors,
officers, directors, employees, agents, attorneys, affiliates, subsidiaries,
successors and assigns (the "Released Parties"), from any liability, claim,
right or cause of action which now exists or hereafter arises as a result of
acts, omissions or events occurring on or prior to the date hereof, whether
known or unknown, including but not limited to claims arising from or in any way
related to this Fifth Amendment, the Note Purchase Agreement and the other
Transaction Documents, all transactions relating to this Fifth Amendment, the
Note Purchase Agreement or any of the other Transaction Documents or the
business relationship among, or any other transactions or dealings among the
Releasing Parties or any of them and the Released Parties or any of
them.


    
      
         


      

      
        - 8
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    7.4           The
Company acknowledges and agrees that each Noteholder has fully performed all of
its obligations under the Note Purchase Agreement and the other Transaction
Documents, and that all actions taken by such Noteholder are reasonable and
appropriate under the circumstances and within their rights under the Note
Purchase Agreement and the other Transaction Documents.  The actions
of each Noteholder taken pursuant to this Fifth Amendment and the documents
referred to herein are in furtherance of their efforts as secured lenders
seeking to collect the obligations owed to them.  Nothing contained in
this Fifth Amendment shall be deemed to create a partnership, joint venture or
agency relationship of any nature between the Company, its Subsidiaries, and the
Noteholders.  The Company, its Subsidiaries, and the Noteholders agree
that notwithstanding the provisions of this Fifth Amendment, each of the Company
and its Subsidiaries remain in control of their respective business operations
and determine the business plans (including employment, management and operating
directions) for its business.

    


    7.5           The
descriptive headings of the various Sections or parts of this Fifth Amendment
are for convenience only and shall not affect the meaning or construction of any
of the provisions hereof.

    


    7.6           This
Fifth Amendment shall be governed by and construed in accordance with New York
law.

    


    7.7           The
execution hereof by you shall constitute a contract between us for the uses and
purposes hereinabove set forth, and this Fifth Amendment may be executed in any
number of counterparts, each executed counterpart constituting an original, but
all together only one agreement.

    


    * * * *
*


    
      
         


      

      
        - 9
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              MODINE
      MANUFACTURING COMPANY

            
	 
      	 
      	 
      
	 
      	
              By:

            	
              /s/ Michael B. Lucareli

            
	 
      	
              Name:

            	
              Michael
      B. Lucareli

            
	 
      	
              Title:

            	
              Vice
      President, Finance & Corporate

            
	 
      	 
      	 
      
	 
      	
              Treasury

            	 
      
	 
      	 
      	 
      
	 
      	
              MODINE,
      INC.

            
	 
      	 
      	 
      
	 
      	
              By:

            	
              /s/ William K. Langan

            
	 
      	
              Name:

            	
              William
      K. Langan

            
	 
      	
              Title:

            	
              President

            
	 
      	 
      	 
      
	 
      	
              MODINE
      ECD, INC.

            
	 
      	 
      	 
      
	 
      	
              By:

            	
              /s/ Thomas A. Burke

            
	 
      	
              Name:

            	
              Thomas
      A. Burke

            
	 
      	
              Title:

            	
              President

            


    

    


    [Signature
Page - Fifth Amendment to 2005 Note Purchase Agreement]


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    ACCEPTED
AND AGREED TO:

    


    AMERICAN
FAMILY LIFE INSURANCE COMPANY

    


    
      	
              By:

            	
              /s/ Phillip Hannifin

            
	
              Name:

            	
              Phillip
      Hannifin

            
	
              Title:

            	
              Investment
      Director

            


    

    


    [Signature
Page - Fifth Amendment to 2005 Note Purchase Agreement]


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    MODERN
WOODMEN OF AMERICA

    


    
      	
              By:

            	
              /s/ Douglas A. Pannier

            
	
              Name:

            	
              Douglas
      A. Pannier

            
	
              Title:

            	
              Portfolio
      Manager - Private Placements

            


    

    


    [Signature
Page - Fifth Amendment to 2005 Note Purchase Agreement]


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
      	
              THE
      PRUDENTIAL LIFE INSURANCE COMPANY LTD.

            
	 
      	 
      	 
      	 
      
	
              By:

            	
              Prudential
      Investment Management (Japan), Inc.,

            	 
      	 
      
	 
      	
              as
      Investment Manager

            	 
      	 
      
	 
      	 
      	 
      	 
      
	
              By:

            	
              Prudential
      Investment Management, Inc.,

            	 
      	 
      
	 
      	
              as
      Sub-Adviser

            	 
      	 
      
	 
      	 
      	 
      	 
      
	
              By:

            	
              /s/ illegible

            	 
      	 
      
	
              Title:

            	
              Vice
      President

            	 
      	 
      
	 
      	 
      	 
      	 
      
	
              PRUDENTIAL
      RETIREMENT INSURANCE AND ANNUITY COMPANY

            
	 
      	 
      	 
      	 
      
	
              By:

            	
              Prudential
      Investment Management, Inc.,

            	 
      	 
      
	 
      	
              as
      investment manager

            	 
      	 
      
	 
      	 
      	 
      	 
      
	
              By:

            	
              /s/ illegible

            	 
      	 
      
	
              Title:

            	
              Vice
      President

            	 
      	 
      
	 
      	 
      	 
      	 
      
	
              MTL
      INSURANCE COMPANY

            
	 
      	 
      	 
      	 
      
	
              By:

            	
              Prudential
      Private Placement Investors, L.P.

            	 
      	 
      
	 
      	
              (as
      Investment Advisor)

            	 
      	 
      
	 
      	 
      	 
      	 
      
	
              By:

            	
              Prudential
      Private Placement Investors, Inc.

            	 
      	 
      
	 
      	
              (as
      its General Partner)

            	 
      	 
      
	 
      	 
      	 
      	 
      
	
              By:

            	
              /s/ illegible

            	 
      	 
      
	
              Title:

            	
              Vice
      President

            	 
      	 
      
	 
      	 
      	 
      	 
      
	
              THE
      PRUDENTIAL INSURANCE COMPANY OF AMERICA

            
	 
      	 
      	 
      	 
      
	
              By:

            	
              /s/ illegible

            	 
      	 
      
	
              Title:

            	
              Vice
      President

            	 
      	 
      


    

    


    [Signature
Page - Fifth Amendment to 2005 Note Purchase Agreement]


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    STANDARD
INSURANCE COMPANY

    


    
      	
              By:

            	
              /s/ Floyd Chadee

            
	
              Name:

            	
              Floyd
      Chadee

            
	
              Title:

            	
              Sr.
      Vice President & CFO

            


    

    


    [Signature
Page - Fifth Amendment to 2005 Note Purchase Agreement]


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
      	
              STATE
      FARM LIFE AND ACCIDENT ASSURANCE COMPANY

            
	 
      	 
      	 
      
	
              By:

            	
              /s/ Julie Hoyer

            	 
      
	
              Name:

            	
              Julie
      Hoyer

            	 
      
	
              Title:

            	
              Senior
      Investment Officer

            	 
      
	 
      	 
      	 
      
	
              By:

            	
              /s/ Jeffrey T. Attwood

            	 
      
	
              Name:

            	
              Jeffrey
      T. Attwood

            	 
      
	
              Title:

            	
              Investment
      Officer

            	 
      
	 
      	 
      	 
      
	
              STATE
      FARM LIFE INSURANCE COMPANY

            
	 
      	 
      	 
      
	
              By:

            	
              /s/ Julie Hoyer

            	 
      
	
              Name:

            	
              Julie
      Hoyer

            	 
      
	
              Title:

            	
              Senior
      Investment Officer

            	 
      
	 
      	 
      	 
      
	
              By:

            	
              /s/ Jeffrey T. Attwood

            	 
      
	
              Name:

            	
              Jeffrey
      T. Attwood

            	 
      
	
              Title:

            	
              Investment
      Officer

            	 
      


    

    


    [Signature
Page - Fifth Amendment to 2005 Note Purchase Agreement]


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
      	
              STATE
      OF WISCONSIN INVESTMENT BOARD

            
	 
      	 
      	 
      
	
              By:

            	
              /s/ Christopher P.
      Prestigiacomo

            	 
      
	
              Name:

            	
              Christopher P.
Prestigiacomo

            	 
      
	
              Title:

            	
              Portfolio Manager

            	 
      


    

    


    [Signature
Page - Fifth Amendment to 2005 Note Purchase Agreement]


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
      	
              WOODMEN
      OF THE WORLD LIFE INSURANCE SOCIETY

            
	 
      	 
      	 
      
	
              By:

            	
              /s/ James J. Stolze

            	 
      
	
              Name:

            	
              James J. Stolze

            	 
      
	
              Title:

            	
              Assistant Vice President

            	 
      


    

    


    [Signature
Page - Fifth Amendment to 2005 Note Purchase Agreement]


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    EXHIBIT
A

    


    AMENDMENT
TO 2006 NOTE PURCHASE AGREEMENT

    


    AMENDMENT
TO CREDIT AGREEMENT

    


    (see
attached)